James Alan Weatherford v. State

ACCEPTED
03-14-00528-CR
5496967
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/1/2015 4:11:44 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00528-CR

IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 6/1/2015 4:11:44 PM
AT AUSTIN JEFFREY D. KYLE
Clerk
_________________________________________________________________

NO. 12-0465-K277

IN THE 368th DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
_________________________________________________________________

JAMES ALAN WEATHERFORD,
APPELLANT

V.

STATE OF TEXAS,
APPELLEE
_________________________________________________________________

APPELLANT’S ANDERS BRIEF
_________________________________________________________________

DAL RUGGLES
SBN: 24041834
LAW OFFICE OF DAL R RUGGLES
1103 NUECES ST.
AUSTIN, TEXAS 78701
PH: (512) 477-7991
FAX:(512) 477-3580
DAL@RUGGLESLAW.COM

ATTORNEY FOR APPELLANT
ON APPEAL ONLY
 TABLE OF CONTENTS

PAGE

Parties to Trial Court’s Final Judgment…………………………………………. 3

Index of Authorities…….….……………………………………………………. 4

Statement of the Nature of the Case……………………….………...………....... 6

Statement of Facts………...…………………………………………………….... 8

Summary of the Argument ……………………………………………………... 24

Argument
There is No Arguable Issue Which Supports an Appeal
In This Case………..…………….……………………………................. 25

Conclusion……………………………………………………….…...…………. 29

Prayer for Relief………………………………………………….…...…………. 29

Certificate of Service……………………………………………………………. 30

Certificate of Compliance………………………………………………………... 30

2
 PARTIES TO TRIAL COURT’S FINAL JUDGMENT

In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies that the

following is a complete list of the parties and their counsel:

(a) the State of Texas represented by:

Ms. Elizabeth Whited – trial attorney
State Bar No. 24060823
Williamson County District Attorney’s Office
405 Martin Luther King Drive
Georgetown, Texas 78626

Mr. Danny Wallace Smith, Jr. – trial attorney
State Bar No. 24046867
Williamson County District Attorney’s Office
405 Martin Luther King Drive, Box 1
Georgetown, Texas 78626

(b) Mr. James Alan Weatherford, represented by:

Mr. Daniel H. Wannamaker – trial attorney
State Bar No. 20834300
Wannamaker & Associates
1012 Rio Grande Street
Austin, Texas 78701

Dal Ruggles – appellate attorney
State Bar No. 24041834
The Law Office of Dal R Ruggles
1103 Nueces St.
Austin, Texas 78701

3
 INDEX OF AUTHORITIES

CASES PAGE

Anders v. California, 386 U.S. 738, 744 (1967)………………................. 24, 25, 29

Blanco v. State, 771 S.W.2d 598, 599 (Tex.Crim.App.-Corpus Christi 1989,
no pet.)..................................................................................................................... 27

Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988) ..........................................25

Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979)
(opinion on rehearing). ......................................................................................... 26

Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App. 1984).....................................27

High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978) ............... 25

Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.)............... 25

Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, pet ref.)……. 25, 26

Liggins v. State, 979 S.W.2d 56, 67 (Tex.App.-Waco 1998, pet. ref.)................... 27

Munoz v. State, 840 S.W.2d 69, 72 (Tex.App.-Corpus Christ 1992, pet. ref)........ 28

Richards v. State, 562 S.W.2d 456, 458 (Tex.Crim.App. 1977)
(opinion on rehearing)............................................................................................. 27

Rodriguez v. State, 850 S.W.2d 603, 607 (Tex.App.-El Paso 1993, no pet.) ........ 28

Smith v. State, 853 S.W.2d 140, 141 (Tex.App.-Corpus Christ 1993, no pet.)...... 27

United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976)..……..…............... 24

4
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES PAGE

Tex.R.App.Proc. 38.1(a)………………………..…………………….…................ 3

Art. 26.13, V.A.C.C.P……………………………………………………………..27

5
TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, James Alan Weatherford, Appellant in this cause, by and

through his Attorney, and files this, his brief on original appeal.

STATEMENT OF THE NATURE OF THE CASE

Appellant was charged by indictment on June 7, 2012 in Cause No. 12-

0465-K277 with 9 counts of possession with intent to promote child pornography

and 15 counts of possession of child pornography.1 (C.R. pp. 28-36) On July 21,

2014, Appellant entered a plea of Guilty to counts 1-9 in the indictment to the

lesser-included charge of possession of child pornography and counts 10-24 in the

indictment charging possession of child pornography. Appellant’s plea was given

open to the court with no agreed recommendation as to punishment. (C.R. pp.

105-108) (R.R. IV, pp. 9-12)

On July 23, 2014, Appellant waived his right to a jury trial for punishment

went to the court for a hearing on punishment. At the culmination of the hearing,

the trial judge found Appellant guilty on counts 1 through 24 in Cause No. 12-

0465-K277 of the offense of possession of child pornography. (R.R. VI, p. 108)

Appellant was sentenced to five years confinement in the Texas Department of

1
Appellant was also charged by indictment in Cause No. 14-0874-K368 with 4 counts of promotion of child
pornography and 22 counts of possession of child pornography. Appellant pled guilty to promotion of child
pornography in counts 2, 3, 4 and possession of child pornography in counts 5-26. As in Cause No. 12-0465-K277,
Appellant’s plea was given open to the court with no agreed punishment. Both indictments were handled
simultaneously during the punishment hearing.

6
Corrections on each count to run concurrent with Appellant’s sentence in Cause

No. 14-0874-K368. (R.R. VI, p. 110) Appellant gave a timely notice of appeal on

August 20, 2014 and filed a timely motion for a new trial on August 21, 2014.

(C.R. pp. 102-106)

7
 STATEMENT OF FACTS

Appellant was charged in two indictments. In Cause No. 14-0874-K368

Appellant was charged with 4 counts of promotion of child pornography and 22

counts of possession of child pornography. The State later waived one count of

promotion of child pornography. In Cause No. 12-0465-K277 Appellant was

charged with 9 counts of promotion of child pornography and 15 counts of

possession of child pornography. In Cause No. 14-0874-K368 Appellant entered a

plea of guilty to counts 2, 3, 4 for promotion of child pornography and 5-26 for

possession of child pornography. In Cause No. 12-0465-K277 Appellant entered a

plea of guilty to counts 1-9 for the lesser-included charge of possession of child

pornography and 10-24 for possession of child pornography. Appellant waived his

right to a jury trial, and elected to have his sentence determined by the Court. (R.R.

IV, pp. 5-15)

During his guilty plea, Appellant testified that he was arrested on March 21,

2012 when officers from the Attorney General’s Office came to his house and

executed a search warrant. In the process of executing the search warrant Appellant

was questioned about suspected child pornography found on a computer located in

the house. Appellant stated he had inadvertently seen the images periodically while

searching for other things and that he tried to delete them whenever he saw them.

Ultimately, the investigation found over 25,000 images containing child

8
pornography in addition to various videos and other media files. (R.R. IV, pp. 16-

19)

Two days following Appellant’s plea, a punishment hearing was held. After

both parties waived opening, the State called Sergeant Ross Behrens. Sergeant

Behrens testified that he worked with the Texas Attorney General’s Office and was

assigned to the Cyber Crime Unit. He went on to say that as a member of the

Cyber Crimes Unit he investigated crimes committed with computers that involved

children. He explained that he often worked in an undercover capacity,

particularly when working online solicitation cases. (R.R. V, pp. 8-10)

Sergeant Behrens testified that he received specialized training through

Internet Crimes Against Children, investigative techniques, Undercover Chat and

several different peer-to-peer trainings. He described a peer-to-peer network as a

file-sharing network where someone can get online and download programs in

order to communicate though the computer with someone else. They can trade

documents, images, videos or whatever they see fit. He explained that these

programs are not preloaded on a computer but rather, have to be sought out and

downloaded from a website. Sergeant Behrens also testified that while these

programs can be used to share child pornography, they can also be used for other

purposes. He testified that child pornography is sought out and actively

downloaded by a person and that in his experience he has never seen an internet-

9
user inadvertently come into possession of files containing child pornography.

(R.R. V, pp. 11-16)

Sergeant Behrens testified that in a typical investigation he employs

proprietary software to scan file-sharing networks in order to identify I.P.

addresses that are sharing files containing suspected child pornography. (R.R. V,

pp.17-18) He then initiates a download of the files and if confirmed to contain

child pornography, he sends the internet-provider an administrative subpoena to

obtain information on the subscriber. This is done to confirm who had the IP

address assigned to them on the day Sergeant Behrens connected and downloaded

the file. With this information he obtains and executes a search warrant of the

location from which the files were downloaded. (R.R. V, pp. 23-30)

Sergeant Behrens testified that in this case he obtained a search warrant after

downloading between 120-130 images and videos of child pornography from

Appellant’s IP address from November of 2011 until February of 2012. He said

the search warrant was executed on March 21, 2012. (R.R. V, pp. 38-40) While

the search warrant of Appellant’s residence was being executed, Sergeant Behrens

interviewed Appellant. He read Miranda warnings to Appellant and told him the

reason for the search. Appellant admitted to Sergeant Behrens that he had used

peer-to-peer networks. Specifically, he admitted using several network programs

including eDonkey, the same program that Sergeant Behrens used to obtain child

10
pornography from Appellant’s IP address. He also admitted he had seen thousands

of child pornography files but that he never sought them out, that he tried to delete

them, and that they would randomly pop up while he was searching through adult

pornography. Sergeant Behrens testified that he had never heard of child

pornography popping up when someone visits a legal adult pornography site.

(R.R. V, pp. 47-51)

Sergeant Behrens testified that two computers were found in Appellant’s

dining room, one computer was in the master bedroom shared by Appellant’s wife

and daughter, and two computers were found in Appellant’s bedroom. One of the

computers was in his bedroom and the other was in the bedroom closet. The State

offered several photos taken of the rooms where the computers were found as well

as photos of the computers themselves into evidence as State’s Exhibits No. 5-20.

The defense voiced a relevance objection. The court overruled the objection and

allowed the exhibits into evidence. (R.R. V, pp. 52-58)

Appellant was arrested on the same day the warrant was executed. Sergeant

Behrens said he made the decision to arrest Appellant based upon files containing

child pornography that were found on the computer that Appellant admitted was

used exclusively by him. (R.R. V, p. 62)

Sergeant Behrens testified that he went back to search Appellant’s residence

on two more occasions. He identified State’s Exhibits No. 2 and 3 as being

11
consent forms to search for computer-related material that Appellant’s wife, Mrs.

Bobbie Weatherford, had signed and said the searches were conducted on April 3,

2012 and April 23, 2012 respectively. He also identified State’s Exhibit No. 4 as

being a child’s drawing that was wrapped around a computer hard drive to conceal

it. Defense counsel objected to Exhibit No. 4 saying it was irrelevant and

prejudicial outweighing probative value. The trial court overruled the objection.

(R.R. V, pp. 62-65)

Sergeant Behrens went on to say that items recovered during the follow up

search included a Maxtor internal hard drive, 3 CDs, and an 8 millimeter camera.

Sergeant Behrens was asked to describe what was on the videos recorded by the

camera to which defense counsel objected. Counsel for Appellant argued the

camera videos depicted extraneous acts not associated with the counts Appellant

was charged with and therefore, should be inadmissible based upon Texas Rules of

Evidence 403, 404, 405 and 802. Defense counsel also objected based upon Fifth

Amendment, Sixth Amendment and due process violations. The State testified that

the images in the camera videos were not child pornography but could be

construed as improper photography. The State argued that the videos were

relevant and being offered as an explanation to the sexual gratification and the

manufacturing and promotion of the child pornography in Counts 2, 3 and 4 of the

indictment that Appellant pled guilty to. The State felt that as such, the videos

12
showed Appellant’s motive. The State also confirmed that the video had been

presented to defense counsel in 2013 along with a Rule 404 notice. The trial court

overruled the defense objection and Sergeant Behrens was allowed to describe the

content of the videos. One video was of children in a pool across a street. There

were two or three girls in the video wearing bikinis. There was another video of a

neighbor girl helping her father tie down a boat. There was also a video of

Appellant’s daughter in which she was completely nude. (R.R. V, pp. 66-70)

Detective Behrens was asked if Appellant ever gave any indication he had

inappropriately touched his daughter, S _ _ _. Defense counsel again objected

based on Rule 403. The court overruled the objection. Detective Behrens said that

during the course of his investigation he saw indications that Appellant had

touched his daughter in a way that was sexual in nature. He went on to say he saw

a progression in Appellant’s case, going from downloading child pornography, to

making child pornography, to touching a child. (R.R. V, pp. 71-73)

On cross-examination, Sergeant Behrens testified that in his opinion the

officers who accompanied him in executing the search warrant could have been

more thorough in their search and that some of the evidence was collected on dates

subsequent to the execution of the search warrant. (R.R. V, pp. 82-88) Sergeant

Behrens confirmed that in the process of downloading files containing adult

pornography from a file-sharing network it is possible that child pornography

13
could be mixed in with files of adult pornography. (R.R. V, p. 92) He also

confirmed that the video of Appellant’s daughter that was in the camera was not

“lewd.” Sergeant Behrens agreed that she was nude and dancing around but not

exposing genitalia, etc.. (R.R. V, pp. 92-95)

The next witness called by the State was forensics investigator, Sergeant

Steven Ried. As a Computer Forensics Certified Examiner working for the

Attorney General’s Office, Sergeant Ried’s job was to preview computers seized

during execution of the search warrant, and to then thoroughly search all of the

digital media that was seized during the investigation. His training and experience

included being an EnCase Certified Examiner, an AccessData Certified Examiner

and Computer Forensics Certified Examiner through the International Association

of Computer Investigative Specialists. (R.R. V, pp. 97-100) Sergeant Ried

testified that in the course of previewing the computer seized at Appellant’s home

he identified files containing child pornography and that based on his forensic

investigation he determined the computer in question to be that of Appellant’s.

(R.R. V, pp. 108-109) Sergeant Ried testified that he had no way of doing digital

forensics on a videotape such as an 8-millimeter film but he was able to do

forensics on the other items of interest. (R.R. V, pp. 116-117)

During the State’s direct examination, Sergeant Ried identified the items

taken from Appellant’s home that he performed forensic analysis on and whether

14
or not he found child pornography on them. He also identified items 25, 27 and 28

as those that were later recovered from the consent-to-searches. Those items

included CDs, DVDs and two hard drives. (R.R. V, pp. 117-122) Sergeant Ried

identified State’s Exhibits No. 21-66 as being DVD’s and CD’s containing images

and videos he found during his forensic analysis of the items in Appellant’s case.

The State tendered to opposing counsel and offered into evidence the photos as

State’s Exhibits No. 30-66 and the DVDs as State’s Exhibits No. 21-29. (R.R. V,

pp. 125-126)

Defense counsel took Sergeant Ried on voir dire regarding the admission of

Exhibit’s No. 21-66. Sergeant Ried testified that he was not able to identify each

item of evidence in terms of which particular count it was tied to. He could not say

if the State’s Exhibits No. 21-66 were all tied to counts in the indictment that

Appellant had pled to. For this reason defense counsel argued that the State had

not set the proper predicate for their admission into evidence and objected. The

State argued that all of the images found by Sergeant Ried to be child pornography

were within the scope of their direct in a sentencing hearing. Additionally, the

State testified that the 49 exhibits being introduced were the 49 counts in which

Appellant pled guilty. The court overruled defense counsel’s objection and

admitted State’s Exhibits No. 21-66 into evidence. (R.R. V, pp. 126-131)

During lengthy questioning by the State, Sergeant Ried provided testimony

15
identifying the specific images and videos in exhibits 21-66. He testified as to

what each image and video depicted and why it would be classified as child

pornography. In all, Sergeant Ried said he found Appellant to be in possession of

more than 25,000 images of child pornography. (R.R. V, pp. 137-162)

Next, the State asked Sergeant Ried if he found a video or image of

Appellant’s daughter during his analysis. He testified that he did. Defense counsel

objected saying the video or image of Appellant’s daughter was associated with a

count in the indictment that was dismissed for lack of evidence. The State argued

that the evidence was relevant to punishment. The court overruled Appellant’s

objection. (R.R. V, pp. 163-164)

Sergeant Ried testified that he learned one of Appellant’s daughters was

named J _ _ _ when he saw it as the title of one of the videos. He testified that

other videos classified as child pornography involved Appellant’s other daughter, S

_ _ _, and were found on items no. 1, 25, 28 and that he believed those videos were

titled “SL6” and then a number. The State then offered Exhibits No. 67, 68, and

69 into evidence. These exhibits were described as DVD’s of three videos titled

SL6-1, SL6-2 and SL6-3. Defense counsel did not object to their admittance.

Sergeant Ried testified that the videos labeled SL6-1, SL6-2 and SL6-3 were child

pornography because the female child in them had her breasts and vagina exposed

towards the camera. Sergeant Ried testified the videos would also be classified as

16
manufacturing of child pornography due to the fact that a female child in the

videos was being posed. Sergeant Ried testified that Appellant could be seen in

the video manipulating the camera, directing the child to pose in front of the

camera, and in one instance, adjusting his penis through his pants. (R.R. V, pp.

165-170)

The State then turned Sergeant Ried’s attention toward the video he deemed

of interest that had Appellant’s daughter, J _ _ _ , in it. Defense counsel objected

saying the video was irrelevant, hearsay, and prejudicial because it is associated

with a count that was dismissed. The State responded that everything was relevant

in punishment and that the video would be relevant even in guilt/innocence

because it showed motive, intent, plan and scheme of not only manufacturing the

video but of what he was going to do with it. The court overruled defense

counsel’s objection. Sergeant Ried testified that the video of J _ _ _ was named “J

_ _.avi” and the State tendered the video to defense counsel and offered it into

evidence as State’s Exhibit No. 70. Once again, defense counsel objected saying

there would be hearsay on the video. The court asked if there was audio. The

State said no. The video was then published to the court and described as not

being child pornography. On the video a female child could be seen changing into

a bathing suit but her genitals or breasts are never exposed because she steps out of

view of the camera. Sergeant Ried testified that he believed he found the video on

17
items No. 1, 25, and 28. He also testified that there were “known.met” files on

these three items. He explained that a “known.met” file is one used by eDonkey or

the eMule program to keep track of information about files that are either uploaded

or downloaded. Sergeant Ried testified that in the “known.met” files there were

images and videos being traded by Appellant to other individuals and though he

did not recall if he saw evidence that the video “J _ _.avi” was being traded,

uploaded, or downloaded in those “known.met” files, he did recall that an image

was. The image that was being shared was a snapshot of the “J _ _.avi” video.

The image was a snapshot of J _ _ _ getting undressed where you could see her

buttocks. (R.R. V, pp. 172-178)

Sergeant Ried testified that he also discovered chats that Appellant had

engaged in on these peer-to-peer networks. The “GigaTribe” chat file was found

on Item No. 1 and Item No. 25. Item No. 1 was the Dell desktop from appellant’s

bedroom and item 25 was the Seagate hard drive. State’s Exhibit No. 71,

described as “about ten pages worth of chat text” was shown to Sergeant Ried who

testified that he recognized it and described it as a chat that appears to be between

two persons by the name of Chris and “Tornado.” State’s Exhibit No. 71 was

tendered to defense counsel and offered into evidence. Defense counsel objected.

Sergeant Ried went on to explain why he believed Tornado was actually Appellant.

He explained that among the many chats he viewed, Tornado was the character or

18
screen name consistently used. That led Sergeant Ried to believe that Tornado was

the user of the computer where the chats were located. According to Sergeant

Ried, Tornado was the holder of an account that requested information and at times

provided information. He testified that Tornado shared the snapshot from J _

_.avi. This fact, along with the fact that Tornado was the consistent user name on

the Dell desktop that was shown to be Appellant’s computer, led Sergeant Ried to

determine that Tornado was Appellant. The State offered the chat into evidence as

State’s Exhibit No. 71 to which the defense objected, saying the chat contained

hearsay and that the proper predicate had not been laid. (R.R. V, pp. 180-183)

The State argued that the chat was not hearsay because it was a statement by

Appellant. The State went on to say that “the statements go to identity, intent,

motive, plan and scheme of the Defendant, not of the other party, and it’s

incriminating statements against himself.” Finally, the State argued they were not

offering it for the truth of the matter asserted. They were offering it for the context

of what J _ _.avi was filmed and uploaded for, and what SL6-1 was filmed and

uploaded for. The court expressed a concern that the chat did not deal with intent

to distribute videos, SL6-1, 2 and 3. (R.R. V, pp. 180-185) Again, the State

argued that while the chat was not about SL6 it would show his motive of what he

planned to do with it. When asked by the court if there was any information that

the chat was done at or anywhere near the time that videos SL6-1, 2, and 3 were

19
made the State answered “no.” The State explained that the films were made over

a period of at least seven years and that although the chat was not about the SL6

videos it was a bad act that was relevant during a punishment hearing. The court

reminded Appellant’s counsel that this was a punishment hearing without a jury.

Defense counsel argued that Rule 403 was “still in play” to which the court

responded “I know it does, but I’m going to go ahead and overrule the objection

and allow it in”. State’s Exhibit No. 71, the chat between Appellant “Tornado”

and Chris, was admitted into evidence and published to the court by having

Sergeant Ried take the role of Tornado and read statements made by him, and

State’s prosecutor, Danny Smith, take the role of Chris and read his statements.

(R.R. V, pp. 183-199)

Sergeant Ried testified that at the end of the chat Tornado requested pictures

of Chris sexually gratifying himself with J _ _’s pictures. The State offered photos

into evidence as State’s Exhibit No. 72 through 75. State’s Exhibit No. 72 was

described as a school photo of Appellant’s daughter. State’s Exhibit No. 73 was

described as the same school photo but this time with an adult male penis over her

mouth. State’s Exhibit No. 74 was a photo of the same picture depicted in State’s

Exhibit No. 73 with semen on it. State’s Exhibit No. 75 was semen on a screen

capture of “J _ _.avi.” Defense counsel objected to all photos on the basis of Rule

403, hearsay, Fifth Amendment, due process and relevance. The court overruled

20
the objections. Sergeant Ried testified that Tornado requested Chris send him

pictures of him enjoying “J _ _.avi.” Sergeant Ried went on to say that although “J

_ _.avi” did not reach the definition of child pornography, it was his belief that it

was made and uploaded for sexual gratification. Regarding some of the specific

content of the chat, Sergeant Ried agreed that Appellant made a statement that

amounted to a confession to indecency by contact with his daughter, J _ _ _ , when

he said to Chris that he had touched her breast. Defense counsel objected based on

Rule 403, Rule 404, Art. 37.07(1) and Fifth Amendment. The State countered that

Appellant’s confession on the chat was already in evidence. The court agreed and

overruled the objection. (R.R. V, pp. 200-202)

Sergeant Ried testified that in his training and experience he had also been

made aware of a progression in behaviors. In his forensic analysis of Appellant’s

case he saw a progression of behavior. He saw a progression from hiding the

camera when videotaping his oldest daughter, to having the camera out while

videotaping his youngest daughter. Sergeant Ried testified that during the chat

Appellant said he wanted to have sexual relationships with his daughter but that he

thought it was “too risky”. (R.R. V, pp. 203-204)

On cross-examination, Sergeant Ried testified that six items were found in

Appellant’s home that contained child pornography. He went on to testify that

while his forensics investigation was able to determine which computers contained

21
child pornography, he could not determine who in the household was using which

computer at any given time. And while he could sometimes determine which

downloaded files had actually been viewed, he could not determine who viewed

them. He also could not say which items contained which particular State’s exhibit

without having the file names with him. (R.R. V, pp. 207-213)

Sergeant Ried testified that some of the pornography found during his

forensic analysis could have come from countries outside the United States and

that some of it could have been made years ago. He testified that there may have

been legal adult pornography in the items he analyzed and that it is possible for

someone to download images without looking at each and every one. (R.R. V, pp.

210-214)

When asked by the defense, Sergeant Ried confirmed that State’s Exhibit 70,

the video titled “J _ _.avi” was not child pornography. He testified the videos

titled “SL6” and introduced into evidence as State’s Exhibits No. 67, 68 and 69

were child pornography however. Sergeant Ried said that he found no evidence

that any of the three videos deemed child pornography had been uploaded or

shared. (R.R. V, pp. 214-216)

At the end of the punishment hearing and after both sides had rested,

Appellant’s counsel made a motion to the court for a directed verdict in Cause No.

14-0874-K368. The defense explained to the court that although Appellant pled

22
guilty to 3 counts of promotion of child pornography there was insufficient

evidence to support his plea. Counsel asked the court to “direct a verdict at least as

to the second degree nature of it and reduce it to a consideration for a third degree

possession of child pornography.” Defense counsel argued that the only evidence

of intent to disseminate child pornography was “bootstrapped” through the count

that was dismissed because of lack of evidence. For this reason Appellant’s

attorney asked the court to consider Counts 2, 3, and 4 as possession of child

pornography rather than possessing it with intent to distribute and promote. The

court responded that Appellant had already pled guilty to those crimes and as such,

the guilt/innocence phase of evidence was over. The court noted that only

punishment was being addressed at that point. Appellant’s motion for a directed

verdict was denied. (R.R. VI. pp. 81-83)

After both sides presented closing arguments the court sentenced Appellant

to 20 years imprisonment for each count of promotion of child pornography that

Appellant pled guilty to in Cause No. 14-0874-K368. These sentences were to run

consecutively. Appellant was sentenced to 5 years imprisonment for each count of

possession of child pornography he pled to in Cause No. 14-0874-K368 and Cause

No. 12-0465-K277. These sentences were to run concurrently. (R.R. VI, pp. 109-

110)

23
 SUMMARY OF THE ARGUMENT

Under Anders v. California, 386 U.S. 738, 744 (1967), a court-appointed

attorney may not raise an issue in an appeal if he makes a conscientious

examination of the case and finds the appeal wholly frivolous. To comply with

Anders, counsel must isolate “possibly important issues” and “furnish the court

with references to the record and legal authorities to aid it in its appellate

function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976). After the

appellant is given an opportunity to respond, the court makes a full examination of

the record to detect whether the case is frivolous. Anders, 386 U.S. at 744.

The undersigned court-appointed appellate attorney has carefully reviewed

the trial record in this case. It is his professional opinion that there is no issue of

arguable merit in this case, and thus Appellant’s appointed counsel files this brief

and moves for withdrawal.

24
 ARGUMENT

THERE IS NO ARGUABLE ISSUE WHICH SUPPORTS AN APPEAL
IN THIS CASE

Following a careful review of the complete record in this case: the

Reporter’s Record and the Clerk’s Record; after talking with Appellant’s court-

appointed trial attorney; and after researching the law as it relates to the facts of

this case, counsel has concluded that any further proceedings on behalf of

Appellant would be wholly frivolous and without arguable merit within the

meaning of Anders v. California, 386 U.S. 738 (1967) and its progeny.2 Pursuant

to Anders, Appellant’s appointed counsel files this brief.

A. The Anders Brief.

The purpose of an Anders brief is to support counsel's motion to withdraw

by showing that he has performed a conscientious examination of the record and

that the appeal is so frivolous that an appellant should be denied his constitutional

right to appointed counsel on appeal. Jeffery v. State, 903 S.W.2d 776, 779

(Tex.App.-Dallas 1995, no pet.). The ultimate test of an Anders brief is whether it

2
A frivolous appeal has been defined as an appeal in which the result is obvious or the
arguments of error are wholly without merit. Coghlan v. Starkey, 852 F.2d 806, 811 (5th
Cir.1988). The court defined a "frivolous appeal" as one where "the only theories that the
attorney can discover after this conscientious review of the record and the law are 'arguments
that cannot conceivably persuade the court ...' " Johnson v. State, 885 S.W.2d at 645. Any point
which is "arguable on [the] merits" is, by definition, not frivolous. Johnson at 645. Yet another
definition is an appeal is "frivolous" when "the trial court's ruling[s were] correct" or "the
appellant was not harmed by the ruling [s]." High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App.
[Panel Op.] 1978).

25
contains a professional evaluation of the record demonstrating why, in effect, there

are no arguable grounds to be advanced. Johnson v. State, 885 S.W.2d 641, 646

(Tex.App.-Waco 1994, pet ref.)

B. The “Arguable Issues of Law.”

In reaching the conclusion that there are no arguable issues of law that

support Appellant’s appeal, counsel has considered the following issues of possible

merit, which he believes are the only possible issues raised by this record.

1. The Evidence Was Insufficient To Prove Appellant’s Guilt for
the Charge of the Indictment.

Appellant could argue that the evidence was legally insufficient to support

his conviction. A judicial confession, standing alone, provides sufficient evidence

to support the trial court's judgment. See Dinnery v. State, 592 S.W.2d 343, 353

(Tex.Crim.App. 1979)(opinion on rehearing). Appellant’s plea of guilty and

judicial confession to the indictment constitutes a waiver of all complaints

regarding the sufficiency of the evidence to support his conviction. Thus this

would be a frivolous argument to make on appeal.

2. Appellant’s Plea of Guilty to the Indictment Was Not Made
Knowingly and Voluntarily.

Appellant could argue that his plea of guilty was not made knowingly and

voluntarily. However, the undersigned appellate counsel has carefully reviewed

the record of the plea and has concluded that the plea was done according to

26
statutory and case law.

Before accepting a defendant's guilty plea, a trial court must satisfy itself

that the accused understands "the consequences of his plea." Liggins v. State, 979

S.W.2d 56, 67 (Tex.App.-Waco 1998, pet. ref.); Art. 26.13, V.A.C.C.P.. However,

the trial judge need not ask any certain questions nor follow any formula to

substantially comply with Art. 26.13. Richards v. State, 562 S.W.2d 456, 458

(Tex.Crim.App. 1977)(opinion on rehearing). The trial court need only

substantially comply with the requirements of Art. 26.13, V.A.C.C.P.. Ex parte

Smith, 678 S.W.2d 78, 79 (Tex.Crim.App. 1984). Art. 26.13, V.A.C.C.P.

mandates that certain "admonishments" must be given to a criminal defendant prior

to accepting a plea of guilty. These include among other things the range of the

punishment attached to the offense. These admonishments may be made orally

and/or in writing. Blanco v. State, 771 S.W.2d 598, 599 (Tex.Crim.App.-Corpus

Christi 1989, no pet.). If the court makes the admonitions in writing, it must

receive a statement signed by the defendant and the defendant's attorney that he

understands the admonitions and is aware of the consequences of his plea. Art.

26.13, V.A.C.C.P.. If done in writing, there is no requirement to verbally inquire

about the voluntariness of a plea after a defendant and trial counsel have signed the

written waiver and the judge has established that Appellant has read and

understood the waivers. Smith v. State, 853 S.W.2d 140, 141 (Tex.App.-Corpus

27
Christ 1993, no pet.); Rodriguez v. State, 850 S.W.2d 603, 607 (Tex.App.-El Paso

1993, no pet.). The trial judge shows compliance with this statute by approving

the plea papers containing the written admonishments by signing a statement

reciting his satisfaction with the same and ordering the documents to be filed in the

papers of the case. Munoz v. State, 840 S.W.2d 69, 72 (Tex.App.-Corpus Christ

1992, pet. ref).

In the instant case, the trial court satisfied himself that appellant was aware

of what he was doing by having him sign both written plea papers that appellant

had read and gone over with his attorney, and then by having appellant again

acknowledge that he understood what he was doing orally on the record.

Appellant testified that he wanted to waive his right to a jury trial and that he

wanted to have a sentencing hearing in front of the judge. Appellant testified that

he understood the consequences of his open plea, including the fact that he was

subject to the full punishment range for a third degree felony in each count he was

pleading to. Appellant testified he was pleading guilty to each count because he

was guilty and that he was doing so knowingly and voluntarily. Appellant also

testified that he understood that by entering his plea he was waiving his right to

appeal any issue with regard to guilt/innocence and could only appeal the

punishment that he might receive with regard to the punishment hearing. (R.R. IV,

pp. 5-12, 33)

28
 CONCLUSION

For the preceding reasons, counsel has concluded that any further

proceedings on behalf of Appellant would be wholly frivolous and without

arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967)

and its progeny. For this reason counsel respectfully moves to withdraw as

counsel on appeal for Appellant.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays

that this Honorable Court permit him to withdraw after this Court’s own

examination of the record in this cause and to afford Appellant his right to file any

pro se brief he may wish to file.

Respectfully submitted,

/s/ Dal Ruggles
Dal Ruggles
Attorney at Law
1103 Nueces St.
Austin, Texas 78701
Telephone: (512) 477-7991
Facsimile: (512) 477-3580
SBN: 24041834

ATTORNEY FOR APPELLANT
JAMES ALAN WEATHERFORD

29
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief on Original

Appeal was delivered, via e-file, to the Williamson County District Attorney’s

Office on this the 1st day of June, 2015.

/s/ Dal Ruggles
Dal Ruggles

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief contains 5,899 words, as calculated by the

word count function on my computer.

/s/ Dal Ruggles
Dal Ruggles

30
 NO. 03-14-00528-CR

JAMES ALAN WEATHERFORD § IN THE COURT OF APPEALS
§
V. § THIRD JUDICIAL DISTRICT
§
THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS

CERTIFICATE OF COUNSEL

In compliance with the requirements of Anders v. California, 386 U.S. 378

(1967), I, Dal Ruggles, court-appointed counsel for appellant, James Alan Weatherford,

in the above-referenced appeal, do hereby verify, in writing, to the Court that I have:

1. notified appellant that I filed a motion to withdraw as counsel with an accompanying
Anders brief, and provided a copy of each to appellant;

2. informed appellant of his right to file a pro se response identifying what he believes
to be meritorious grounds to be raised in his appeal, should he so desire;

3. advised appellant of his right to review the appellate record, should he wish to do
so, preparatory to filing that response;

4. explained the process for obtaining the appellate record, provided a Motion for Pro
Se Access to the Appellate Record lacking only appellant’s signature and the date,
and provided the mailing address for this Court; and

5. informed appellant of his right to seek discretionary review pro se should this
Court declare his appeal frivolous.

Respectfully submitted,

_/s/ Dal Ruggles_________________
Dal Ruggles
Attorney for Appellant
 ACCEPTED
03-14-00528-CR
5515859
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/2/2015 4:13:16 PM
JEFFREY D. KYLE
CLERK

June 1, 2015

VIA CERTIFIED MAIL

Mr. James Alan Weatherford
TDCJ # 01953853
Middleton Unit
13055 FM 3522
Abilene, Texas 79601

Re: James Alan Weatherford v. State of Texas
Trial Court Cause No. 12-0465-K277 in the District Court of Williamson County
Third Court of Appeals Cause No. 03-14-00528-CR

Dear Mr. Weatherford:

Enclosed please find a copy of the motion to withdraw as counsel and brief pursuant to
Anders v. California that I have prepared and filed in your case. After a diligent search of both the
clerk’s record and reporter’s record in your case and a review of the applicable law, it is my opinion
that no reversible error occurred at your plea and sentencing proceeding.

Whenever appellate counsel files a motion such as this, the law provides the appellant the
right to review the record and file a response identifying to the appellate court any grounds he
thinks are non-frivolous issues to be raised on his behalf that the appellate court should consider in
deciding whether the case presents any meritorious grounds for appeal. Because I have filed this
motion and brief, you now have the right to review the record and file a response or brief if you so
choose. To assist you in obtaining the record if you wish to review it, I have enclosed a Motion for
Pro Se Access to the Appellate Record for you to file. In order to obtain the appellate record, you
must sign and date the motion and mail it to the Third Court of Appeals within ten days of the date
of this letter at the following address:

Jeffrey D. Kyle, Clerk
Third Court of Appeals
Post Office Box 12547
Austin, Texas 78711

The Court of Appeals will then direct the clerk of the trial court to provide you with a copy of the
appellate record. Your response will be due to be filed in the Third Court of Appeals within 30 days
of the date the clerk provides the record to you.

Whether or not you file a response, the law requires the Court of Appeals to review the
record to determine if the Court agrees with my assessment that no meritorious grounds for appeal
exist, i.e., that no reversible error exists. If the Court does not agree, but instead believes there are
non-frivolous issues to be raised on your behalf, the Court must abate the appeal to have another
attorney appointed to review the record on your behalf.

Should the Court of Appeals ultimately determine that there are no meritorious grounds to
be raised and that your appeal is frivolous, the Court will affirm your conviction and sentence. You
may then file a pro se petition for discretionary review with the Texas Court of Criminal Appeals.
Such petition must be filed within 30 days of the date the Court of Appeals renders its judgment.

Feel free to write me if you have any questions about the procedure utilized in your appeal. I
will do my best to answer any questions you may have.

Sincerely,

Dal Ruggles

Enclosures